Saving, or Claiming, Dunes

Three issues important to the East Hampton Town Trustees were brought to the fore by Hurricane Sandy — shellfish, sand, and public beaches.
During a quickly scheduled meeting on Saturday, five days after the storm roared through, the trustee board voted to postpone the opening of scallop season in town waters until Nov. 19. The postponement follows the opening delay in state waters until Nov. 13 for fear of contamination of scallop habitat due to storm runoff and overwhelmed septic systems.
The second issue was thornier. Trustees agreed that permitting people to rebuild eroded dunes to protect their houses was “a tricky situation.”
“We don’t want to see anyone lose a house, but sand should not have foreign material. We don’t want the panic to pollute,” was how one trustee, Nat Miller, put it.
“When was the last time you’ve seen a variance denied?” asked Diane McNally, presiding officer of the nine-member board, in observing how wrecked houses were the result of allowing houses to be built too close to the sea. “A long time ago, people knew it wasn’t a good idea.”
Ms. McNally addressed the town board last Thursday and said that Sandy might make some people think twice about building or rebuilding in vulnerable areas, and she urged the board to stick to the protocols set forth in the town’s Local Waterfront Revitalization Program plan, which sets policy regarding shoreside development.
The board agreed not to discourage homeowners from replenishing beach with sand and makeshift dune, especially with this week’s northeaster approaching, as long as the sand was “beach compatible” and free of foreign material, rock, or any kind of hard structure. Permits were required, however.
“Sand alone, okay, and if they plant beach grass they will have to give us a covenant saying they will not claim the new dune as their property,” Ms. McNally said. Trustees have become touchy about the dune grass issue.
Last March, State Supreme Court Justice Thomas Whelan ruled against the trustees in a suit brought by the board disputing the Macklowe family’s claim of ownership over a grassy dune between their upland property and the sea in East Hampton Village.
In that part of town, trustees claim ownership of the beach on behalf of the people, starting at the toe of a dune, that is, where dune grass stops and sand starts. In other areas, trustees claim the beach below the mean high tide line.
Justice Whelan held that the Macklowes’ chain of title flowed from a deed that defined the property’s seaward border as the “average southerly line of beach grass.” At first glance, the Macklowes and trustees would seem to be in agreement.
However, the southerly line of beach grass had accreted, or grown seaward, over time, thus adding to private property and subtracting from public beach. A loss for the trustees, or is it?
By the same argument, if grassy dune is taken by storm surge, the beach left behind would become public property. It would seem the same would be true in areas where trustee beach begins at the mean high tide line. If the sea is indeed rising, mean high water will rise along with it, thus adding public area.
The trustees have appealed Justice Whelan’s decision in the Macklowe case. The outcome could make important precedent either way, according to John Courtney, the trustees’ attorney.